I have a legal grow under Washington state law. I have a temporary structure in the garage. Is my landlord able to evict me based on this?
Landlord / Tenant Lawyer
There is no settled case law on this subject yet. Arguably if he moved to evict you, you could assert that you have a disability and thus are entitled to reasonable accomodation in order to enjoy your housing opportunity. You can assert disability as a defense to an unlawful detainer - Google Josephinium v Kahli for the citation to authority on the subject. The fair housing rules in WA state are in Title 49, Employment. Go figure.
On the other hand, a WA State Supreme Court case recently held that an employer had an absolute right to terminate an employee who had a positive UA for MJ, medical or otherwise. The UA was a reasonable condition of employment, and the dirty UA an acceptable basis to terminate the employee, and the MMJ argument got her exactly nowhere.
So if you are in the mood to be a guinea pig for MMJ rights, you might be able to find an attorney willing to assist you, but I don't think it is a slam-dunk win.
Hope this helps. Elizabeth Powell
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Real Estate Attorney
I agree with Ms. Powell and would add that perhap it is the temporary structure that may be the problem. You should negotiate to the landlord's satisfation the it is legal and safe.
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Criminal Defense Attorney
I would review the lease and see if there are grounds in the lease that can cause the eviction. In most leases there is a clause that states the tenant cannot violate any laws, local, state or Federal while in the leased building. Marijuana is still illegal on the Federal level, federal law supersedes state law and a property owner could be subject to civil forfeiture. I believe the owner/landlord has a right to prevent his property from being used to commit a crime. Next lease, you should look for a landlord that is MMJ friendly and see if the landlord will either add medical marijuana use into the lease and remove any prohibition from violating federal law. This has been done a lot.
Landlord / Tenant Lawyer
I agree with Ms. Powell's analysis of this matter. There is no good case law on the subject and I can think of many attorneys that would be interested in creating case law on the subject.
I see the tenant favorable arguments revolving around a reasonable accommodation request and/or no basis to bring an eviction action. Essentially, if you have a mmj card you could probably be able to show that you are a disabled person under the ADA's definition. So long as your accommodation was reasonable, a landlord may have to honor your medication.
The second argument would be that there may be no basis under 59.12.030 to evict someone for medical marijuana use. RCW 59.12.030(4) states that committing a crime under Washington law can be the basis for issuing a 3 day quit notice, but medical marijuana is not a crime under WASHINGTON law . . . it is under federal law.
Again, it is an interesting question with no definitive answer.
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